Thoughts on C-32 committee meeting 19

Meeting 19[2] was at 1 Wellington Street, rather than centre block. Gordon Brown (Leeds—Grenville) was back as chair after having been away due to a death in the family. While sending my condolences to him, I also want to send out a "get well soon" to Dan McTeague (Pickering—Scarborough East) who despite having pneumonia was at the meeting and in the house today (participating as much as he could given the situation).

Up in the morning as witnesses was representatives from Bell, Rogers and Telus. While all three of these companies have vertical integration from content creation, broadcasting, BDU's, and voice/phone service, their focus was largely on their roll as ISPs. The focus of the discussion with MPs was on intermediary liability, and the Notice-and-Notice regime that has been articulated in Bills C-60, C-61 and the current C-32.

A little troubling was questions from Liberals's Marc Garneau and Pablo Rodriguez demanding that the ISPs provide data on the effectiveness of the regime. I believe this is a bit premature for a few reasons.

We don't yet have common criteria for judging success of the regime. In my mind Notice-and-Notice is part of a graduated response (no, not 3-strikes) system where some more formalised communication can happen between alleged copyright holders and alleged infringers. Given the complexity of Canadian copyright law, many Canadians are inadvertent infringers and it is very helpful to provide an inexpensive communications system between copyright holders and people who may not realize that there is anything wrong with what they are doing.

While ISPs have been offering a free communications services to copyright holders on a voluntary basis, until there is legislation and regulation it is impossible to streamline this process. While Rogers did offer some vague numbers (only 5% of customers ever had any notices sent, only 1/3 of those ever saw a second, and only 1/3 that received a second ever received a third - or less than half of a percent of customers receiving three notices), I suspect these are also anecdotal and not the type of disclosure that may be part of the relevant regulation.

After passing a bill that created a notice-and-notice regime, there is a need to create regulation such that notices can be automated. This requires discipline in the market, which in this case means requiring that copyright holders wishing to have their notices communicated do so in a reasonable manner.

We should not concern ourselves with whether the 95% who have never been sent a notice may or may not be infringing. It is useless to worry about unreported hypothetical infringements, and there must be some onus on copyright holders to take this minimum step to protect their own rights. Far too much of the alleged harm from infringement comes down to anecdotal evidence and biased studies with methodologies that have holes you can drive trucks through. We need to start to realise that a vast majority of Canadians are honourable people. I'm far more sceptical about whether the 5% are bad actors than whether the 95% are good law abiding citizens.

I believe that if any infringing activity can be deterred without needing to take people to court, the system is a success. On the flip side, any system that allows for extrajudicial punishment (IE: remedies without having to go to court) for something as complicated as copyright where lawyers often disagree on how to interpret clauses would be a sign of failure. The Notice-and-notice regime with appropriate regulation strikes the right balance. A notice-and-take-down or notice-and-terminate regime are entirely unreasonable.

While I oppose a three-strikes and your out system, I also support a graduated response. I believe we have the beginnings of this in C-32.

Notice-and-notice provides the first level response: it is extremely cheap for everyone involved, and makes sure that anyone infringing knows that they are infringing.

A reduction of statutory damages for first and second-time individual infringers provides a second level response. This avoids the outrageous situation of cases seeking massive statutory damages against children, single mothers, dead people or other such things. This is a situation that requires court intervention to determine if an activity really was infringing.

The third-level response would be for people who are repeat infringers, where infringement is determined by the courts. This would be where the reduction of statutory damages would no longer be available.

It is unfortunate that the Liberal and Block MPs who spoke weren't thinking this way. Then again, they may all be distracted by the increasingly likely that we will be headed into an election by the end of the week. This may have been the last or second-last Bill C-32 committee meeting.

In the afternoon there was representatives of the Canadian Federation for the Humanities and Social Sciences (CFHSS), Canadian Library Association (CLA) and Canada Council for the Arts (CCA).

Both CFHSS and CLA spoke about how any legal protection for TPMs should be limited to activities that would otherwise be infringing. This was picked up by Mr. Angus who spoke about how we are setting up a two tiered system where we have one set of rules and laws for tha analog world and a different one for the digital world. Obviously this is of concern to me, given the TPM section of C-32 can be (and likely would be if passed) abused to circumvent contract, e-commerce, privacy, trade, consumer protection and property law. Contrary to how the Conservatives have been selling it, these provisions would accomplish the opposite of creating a well mannered free marketplace of legitimate products and services.

There was some discussion about moving away from the narrow criteria for Fair Dealing and moving to a "such as" model such as used in the United States. This would allow us to focus on the fairness test.

The Supreme Court of Canada has identified six non-exhaustive factors to assist a court in determining whether a specific use is fair: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

(emphasis added)

Looking at these, it should be noted that there is considerable overlap in the non-exhaustive criteria used to determine whether a use is fair. The suggestion that continues to come from some of the lobby groups that using the language "such as" or adding the word "education" or "teaching (including multiple copies for classroom use)" would open the floodgates for uncompensated uses in ways that would not be allowed under US law doesn't appear to be based in the language of the laws or in any court interpretations I have been made aware of.

My suggestion for fair dealing reform[4] was to use the "such as" language and include the 6 non-exhaustive factors within the Copyright Act itself. I believe this is in everyone’s best interests, including (and maybe especially) those concerned that clearly unfair activities might somehow be considered fair.